[access-uk] Off topic but brings up related points:Downloads are not performances, rules US court • The Register

  • From: Gordon Keen <gordonkeen@xxxxxxxxxxxxxx>
  • To: access-uk@xxxxxxxxxxxxx
  • Date: Thu, 30 Sep 2010 12:04:52 +0100

Hi
So is the kindle tts a performance?
Equally is the RNIB streaming service infringing copyright?

Murkier and murkier...
http://www.theregister.co.uk/2010/09/30/downloads_performance_ruling/

Downloads are not performances, rules US court

A music download is not a performance of a work and therefore does not demand 
an additional licence and fee, a US court has ruled. A stream of a file is a 
performance, though, the court said.

The US Court of Appeals for the Second Circuit ruled on a case in which music 
rights body ASCAP was suing Yahoo! and Real Networks over licensing revenues 
from those companies' use of its members' music.

US copyright law creates separate rights which can be licensed and charged for 
separately. Real and Yahoo! accepted that they owed licensing revenues for 
their users' making of copies of the works when they downloaded them.

They disputed, though, ASCAP's claim that the downloading process was a 
'performance'. Performances are separately licensed and can be separately 
charged for.

ASCAP appealed an earlier ruling that downloading was not a performance, but 
the Court of Appeals ruled against it, saying that because there is no audible 
music while a file is being downloaded it cannot count as a performance.

"In answering the question of whether a download is a public performance, we 
turn to Section 101 of the Copyright Act, which states that '[t]o ‘perform’ a 
work means to recite, render, play, dance, or act it, either directly or by 
means of any device or process'," said the ruling. "A download plainly is 
neither a 'dance' nor an 'act'. Thus, we must determine whether a download of a 
musical work falls within the meaning of the terms 'recite,' 'render,' or 
'play'.

"The ordinary sense of the words 'recite,' 'render,' and 'play' refer to 
actions that can be perceived contemporaneously," said the ruling.

"Itzakh Perlman gives a 'recital' of Beethoven’s Violin Concerto in D Major 
when he performs it aloud before an audience," it said. "Jimmy Hendrix [sic] 
memorably (or not, depending on one’s sensibility) offered a 'rendition' of the 
Star-Spangled Banner at Woodstock when he performed it aloud in 1969. Yo-Yo Ma 
'plays' the Cello Suite No. 1 when he draws the bow across his cello strings to 
audibly reproduce the notes that Bach inscribed. Music is neither recited, 
rendered, nor played when a recording (electronic or otherwise) is simply 
delivered to a potential listener.

"The downloads at issue in this appeal are not musical performances that are 
contemporaneously perceived by the listener," said the ruling. "They are simply 
transfers of electronic files containing digital copies from an on-line server 
to a local hard drive. The downloaded songs are not performed in any 
perceptible manner during the transfers; the user must take some further action 
to play the songs after they are downloaded."

The ruling said that the same could not be said for the streaming of files 
which, like broadcasts, had to be licensed for their performance.

"[Yahoo! and Real's] stream transmissions, which all parties agree constitute 
public performances, illustrate why a download is not a public performance. A 
stream is an electronic transmission that renders the musical work audible as 
it is received by the client-computer’s temporary memory. This transmission, 
like a television or radio broadcast, is a performance because there is a 
playing of the song that is perceived simultaneously with the transmission," 
said the Court.

The Court rejected ASCAP's appeal that downloading was a performance, and it 
also overturned the basis of a lower court's award of licensing income to 
ASCAP. It said that the court's findings were "flawed in two major respects" 
and rejected the mechanism used to calculate licensing revenues.

The Court sent the case back to the lower court for reconsideration of an 
appropriate method of calculating the licence fees due to ASCAP.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.


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